Public Bill Committee

[Sir John Butterfill in the Chair]

Further written evidence to be reported to the House

PB 33 Institute of Environmental Management & Assessment
PB 34 Royal Institution of Chartered Surveyors

Clause 105

What may be included in order granting development consent

Jacqui Lait: I beg to move amendment No. 26, in clause 105, page 49, leave out lines 26 to 29.
Welcome back to the scintillating proceedings on the Planning Bill, Sir John. We are starting with what appears to be an innocuous little amendment to delete clause 105(4)(h), which would allow the development consent orders to free land
“from any restriction imposed on it by or under the Green Belt (London and Home Counties) Act 1938 (c. xciii), or by a covenant or other agreement entered into”—

John Butterfill: Order. I know that the hon. Lady would not wish to mislead the Committee, but the amendment would also delete clause 105(4)(g).

Jacqui Lait: Thank you, Sir John. I am grateful to you, because that paragraph is even more sweeping. It is considerably less innocuous, even if shorter. Unless I receive serious reassurance from Ministers, I will invite my hon. Friends to vote on the amendment.
You, Sir John, probably more than anyone, are aware of the pressure on the green belt in and outside London. My hon. Friend the Member for Bromley and Chislehurst and I have long had to fight, on behalf of our constituents in Bromley, attempts to infiltrate the green belt with development; 50 per cent. of our borough is green belt, which leads to a lot of pressure on it. Anyone with an outer London constituency or one that borders any large metropolitan area—I do not use the term in the local government sense—will know that the pressure on the green belt is huge. The pressure to ensure that that lung remains around the big urban conurbations is equally huge.
The Government have for a long time been trying to use various methods and means to resist or break down the resistance to development in the green belt. They have been defeated so far on all occasions. It is, to say the least, sneaky to try to get it through in this Bill, in which no one would believe that it should be included.
We all know that the pressure for homes is enormous. The purpose of one section of the Bill, which we have still to come to, is to try to extract some extra value from the capital gains on housing developments because of demand in response to the market. However, the green belt is precious and is perceived to be precious. Should the infrastructure planning commission or any other body be able to override current legislation on it, I would suggest that the Government would live to regret it. We certainly think that that should be resisted wherever attempts arise to make incursions on to green belt land.
Therefore, as I have said, unless the Minister can reassure me as to the point of including paragraphs (g) and (h) in the Bill, I will invite my hon. Friends to oppose their inclusion as strongly as we can.

Elfyn Llwyd: I fully support the amendment. The power in the paragraphs concerned seems very sweeping. Were the commission considering making such an order, effectively freeing up green belt land, would there be a dialogue with people in the surrounding area before such an order was granted, so that at least the consultation would have been gone through?
The provision seems to be extremely sweeping, and as the hon. Member for Beckenham has said, green belt land is there for a purpose and is very much valued by those who live in its vicinity. Although I generally understand why the commission should have powers to vary existing legislation, which can sometimes be arcane, I find this power a little disturbing. Will the Minister give some assurances about the amount, form and timing of consultation and how the commission would be guided?

Jacqui Lait: Although I sympathise with the hon. Gentleman and generally agree that there should be consultation, I am concerned that we can consult until we are blue in the face. I rather suspect that the consultation will be completely meaningless if the provision is passed, and that our local communities will feel even more cheated.

Elfyn Llwyd: The hon. Lady puts her case strongly and I hear what she says. No doubt the Minister heard that and will respond in due course.

Bob Neill: May I briefly support the observations that have been made? The provision is a concern, and I understand the point made by the hon. Member for Meirionnydd Nant Conwy. There might be certain circumstances in which it is necessary to lay a pipeline across green belt land, or to undertake something similarly limited and modest that relates to infrastructure and development. However, a proposal to build a major infrastructure development within the green belt would raise great concerns indeed.
Although I see the argument for single consent, I cannot help but feel that however well it is dressed up, there will be a diminution of the protection of the green belt and of the rights of individuals to be consulted and to make representations. We have addressed that point with regard to London suburbs and suburban areas, and I make no apology for that. In my constituency, the inspector has recently given permission for some 700 houses to be built on green belt land, and that is a troubling precedent.
That issue relates not only to the suburbs, but to other areas of the country where we can envisage some type of infrastructure project being placed on the green belt, and the sweeping nature of the power seems to go well beyond what is set out in the subsection’s preceding paragraph, which sensibly limits the power in relation to electricity lines going across the land. What constraints and restrictions will there be on that power? Do we run the risk that many acres could be taken out of green belt land under the provision as it stands, with less protection and opportunity for the public to have their say than exists at the moment?

Jim Fitzpatrick: On behalf of those of us on the Government Benches, let me welcome you back to the Chair, Sir John.
The Government do not support the amendment, but understand what the hon. Member for Beckenham is trying to do. She would like to see green belt land keep all of the protection that it currently enjoys against inappropriate development. The Government share that desire to protect those areas from inappropriate development, but the amendment would not achieve that intended result and is unnecessary.
It might help the Committee if I were to set out the main protections for green belt land, and to clarify the differences relating to the amendment and the apparently simple term “green belt”. The clause relates to land that is designated as green belt land in accordance with the Green Belt (London and Home Counties) Act 1938. Under the 1938 Act, local authorities were given power to hold certain lands surrounding London and other metropolitan areas on trust, and development of that land is subject to restrictions over and above those imposed by the Town and Country Planning Act 1990.
When land is designated as green belt land for the purposes of the 1938 Act, a separate consent is required from the Secretary of State to enable the land to be developed. I will refer to that type of green belt land as statutory green belt land. It is not the same as land designated as green belt land by a local authority in its local development plan. Such land is currently protected from development by both local and national planning policy, which prohibits inappropriate development in the green belt, except in very special circumstances. This type of designated green belt is not the same as statutory green belt land. Although the development of this designated green belt land requires planning permission in the usual way, it does not also require a separate consent from the Secretary of State under the 1938 Act.
The way the Bill works in relation to green belt land is to combine the consent regimes arising from the 1938 Act and the Town and Country Planning Act 1990 into the single consent regime and to give the commission, or the Secretary of State when she is the decision maker, power to authorise the development of both statutory green belt land and land designated as green belt in a local development plan. An order granting development consent in relation to green belt land will therefore have a similar effect to both a planning consent and a separate consent from the Secretary of State under the 1938 Act.
In deciding whether to grant consent for a development in the green belt, the decision maker will be required to adhere to the policies set out in any relevant national policy statement and to take into account such other factors as may be prescribed. It is intended that not only will national policy statements reflect existing policy on green belt, as set out in PPG2, but the Secretary of State will make regulations requiring the decision to take into account the purpose for which green belt land is held. In that way, the special status of green belt land will be protected.
Amendment No. 26 would mean that a development consent order could not include provisions on the transfer of land protected by the 1938 Act or the freeing of such land from restricted covenants under that Act. That would have no effect on the ability of the IPC to make orders that contain provisions relating to land designated as green belt by virtue of a local development plan. The effect of the amendment would be detrimental to the concept of a single consent regime as in certain circumstances it would be necessary for a promoter to apply for a separate consent from the Secretary of State in order to allow a proposed development to proceed.
Applicants could still obtain authorisations for such sales or transfers, but only after a separate application to the Secretary of State, who would be unsighted on those issues as she would have no role in the granting of the other permissions or consents in relation to the project. Furthermore, under the amendment, in cases in which the Secretary of State was the decision maker, the applicant would still need to make a separate application to the Secretary of State.
The Government believe that the right way to address the issue is by ensuring that green belt policy is properly set out in national policy statements. It is our intention that when we introduce national policy statements they will cover the special policy protection for green belt land, which prohibits inappropriate development except in very special circumstances. In turn, that will be reflected in the policies set out in any local development plan. When Ministers prepare national policy statements they will have regard to national planning policies, including PPG2 on the green belt. Special protections for green belt land will therefore continue to apply.
In addition, I should like to draw the Committee’s attention to clauses 94 and 95, which permit the Secretary of State to prescribe matters which the decision maker must take into account before deciding to make an order granting development consent. It is intended that those regulations will set out that in a case involving proposed development on any green belt land, the decision maker will be required to take into account the special status of the land. The Secretary of State already takes that into account currently when deciding whether to grant a green belt consent under the 1938 Act. The single consents regime, as we have discussed previously, is based on a clear separation between policy making and decision making. As such, the final decision maker needs to have the power to grant all the necessary consents for a particular project, which may include the power to free the land in question from the restrictions imposed on the green belt.
In response to the specific question raised by the hon. Member for Meirionnydd Nant Conwy about dialogue with local communities, there would be three chances for local consultation: first, when the national policy statement is drafted; secondly, during the pre-application consultation; and thirdly, when an application is made. Therefore, there will be three opportunities to ensure that local issues are raised appropriately. On that basis, I ask the hon. Lady to withdraw her amendment. Otherwise, I will have to ask my hon. Friends to vote against it.

Jacqui Lait: The Minister has set out a convincing argument, but it still begs a number of questions. He refers to inappropriate development in the green belt. I would suggest that that is the issue about which local communities might get most exercised. They wish to feel, as we have set out clearly, that there is recourse to a democratically accountable person—the Secretary of State—because green belts are regarded as being precious in urban communities.
The other concern that I have, which applies to the green belt planning permission that my hon. Friend the Member for Bromley and Chislehurst referred to, is that once there is any form of infrastructure development such as a pipeline, pylons or an electricity sub-station, the land around it tends to degrade. Over the last few years we have heard the argument that the minute the green belt has degraded, it becomes ripe for development. We are concerned that this planning system should in no way lead to the degradation of the green belt. Therefore, I will press the amendment to a Division.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 12.

Question accordingly negatived.

Jacqui Lait: I beg to move amendment No. 418, in clause 105, page 50, line 12, leave out paragraphs (a) and (b).

John Butterfill: With this it will be convenient to discuss Government amendments Nos. 430 to 432.

Jacqui Lait: We tabled the amendment to delete even more sweeping powers than were set out in the green belt provisions in subsection (4). Subsection (6)(a) and (b) will give the IPC the power to override Government decisions. It will be able to amend or repeal any legislation. If that reading is correct, a fundamental principle of democracy is being swept aside in order to speed up the planning system. Doubtless Ministers will have a very clear explanation for giving the IPC this power. We all wish to see the process speeded up, but under this proposal the IPC could ride roughshod over the democratic rights of the British public and of Parliament. I find that fundamentally difficult to contemplate, let alone accept.
Again, we want to hear what the Government have to say on the matter. Unless their rebuttal of the amendment is convincing, it seems that we are moving back to a situation in which the Executive pay absolutely no attention to the people who are democratically accountable. Without going too deeply into one of our continual criticisms of the Government over the past 10 years, that is all of a piece with their ignoring Parliament and wishing that they could ride roughshod over us and that we would all do exactly as they wished. On those powerful grounds, I have tabled the amendment.

Jim Fitzpatrick: We oppose the amendment. I will explain why I hope that it will be withdrawn, subsequent to my explanation, or resisted by my hon. Friends.
The clause sets out which matters can be included in an order granting development consent for an application. In particular, the clause allows an order granting development consent to apply, modify, or exclude legislative provisions relating to matters covered in the order, subject to certain limitations. The ability to do that is modelled closely—I got into trouble last week for using the word “modelled”; I have checked this time and I am using it in the right context—on the powers already available to the Secretary of State in making orders under section 5 of the Transport and Works Act 1992.
I appreciate the hon. Lady’s concerns about the fact that the Bill would allow legislation to be applied, modified or excluded by a body other than Parliament. I hope to reassure colleagues about that and to demonstrate that a deletion of the provisions in paragraphs (a) and (b), as envisaged in the amendment, would be the wrong step to take. Before the Committee considers the amendment, it might be worth while to reflect on why the 1992 Act and the Harbours Act 1964 contained the legislative provisions that we are now trying to incorporate into the Bill.
In the past, promoters of several types of nationally significant infrastructure project have found that there are statutory provisions regulating existing infrastructure that they propose to upgrade or improve. In particular, railway infrastructure is frequently covered by one or more private Acts of Parliament, which gave the original promoters of the railway the ability to construct it in the first place. Often, the provisions of the existing legislation are inconsistent with proposals to upgrade or improve infrastructure.
For example, Network Rail might be under an obligation to provide or maintain a certain infrastructure, perhaps a bridge or footway, that would be incompatible with the provisions to upgrade a site. It was with that problem in mind that Parliament previously granted the Secretary of State the extensive powers in section 5 of the Transport and Works Act 1992, including the ability to make an order that can
“apply, modify or exclude any statutory provision which relates to any matter as to which an order could be made”
under that Act. The 1992 Act also permits the Secretary of State to make amendments, repeals and revocations of statutory provisions of local application as appear to her to be expedient in connection with an order. The Harbours Act makes similar provision in respect of local Acts in relation to harbour developments.
Clause 105(6) of the Bill is based on the wording in section 5 of the Transport and Works Act 1992, and the similar provisions in the Harbours Act. As we have seen in part 3, many of the types of projects to which the 1992 Act applies will in future be classified as nationally significant infrastructure projects, and, as such, will require development consent under the Bill. Clause 29(2) has specifically excluded the 1992 Act or 1964 Act orders from being made in relation to those projects. That will prevent the use of orders under those Acts to amend legislation in relation to such projects.
For the reasons I have already given, many of such projects could be incompatible with existing legislation. Unless that is dealt with, the single consent regime will be unworkable. The options would be to retain the provisions of the Transport and Works Act and the Harbours Act in relation to relevant nationally significant infrastructure projects, or for promoters to be required to promote private legislation to enable schemes to proceed. We do not believe that either of those options is sensible.
On the issue of private Bills, we should remember that the huge amount of parliamentary time that was taken up debating private Bills was one of the prime reasons why Parliament created the Transport and Works Act regime in the first place. If we required a promoter to obtain an order under the Transport and Works Act or Harbours Act, in addition to consent under the new regime, it could result in exactly the kind of duplication of effort that the new regime seeks to avoid. It would mean that the decisions would continue to go to the Secretary of State, which is the subject we debated previously. As has been mentioned previously, that would add time to the process and reduce predictability, because there would be multiple decision makers. In any case, we do not believe that such a system would lead to better or different orders because of the safeguards that we have already built into our proposals.
First, and most basically, the only pieces of legislation that can be altered are those that the promoter includes in the application. The IPC will not be able to make orders on a subject other than for that which is applied. Secondly, the form of the draft order is based on model provisions that are set out for the Secretary of State by order, as we discussed under clause 33. Those will be similar to the model provisions currently set out in relation to Transport and Works Act orders. Any Member will have the ability to scrutinise those model provisions and force a parliamentary debate on them.
Thirdly, the decision maker will only be able to approve the application and make an order when that is in accordance with the relevant national policy statement. Again, that will have been set out by the Government and scrutinised in Parliament. Fourthly, where the IPC intends to use the powers in clause 105(6), it will have to send a copy of the draft order to the Secretary of State ahead of time. If the Secretary of State thinks that the terms of the order would contravene Community law or any of the convention rights, she has a power in clause 106 to direct or require the IPC to change the terms of the order.
It should also be remembered that powers set out in clause 105(6), under which legislation may be amended, apply only in relation to the particular development that is under consideration. Those powers do not permit the commission or the Secretary of State to usurp the functions of the legislature. They are powers of limited scope and application. I hope that the explanation of the safeguards on the use by the IPC of legislative powers gives comfort to the Committee and the hon. Member for Beckenham. I therefore ask her to withdraw her amendment.
Government amendments Nos. 430 to 432 are technical in nature. They are intended to ensure that when the IPC needs to use its legislative powers under clause 105(6), those allow amendments not only of legislation but of statutory provisions. Without that provision, the IPC would not be able to amend previous Transport and Works Act orders or Harbours Act orders.

Jacqui Lait: I am grateful to the Minister for that comprehensive explanation, which goes some way to reassure me. On the basis of that I shall seek to withdraw the amendment, but I will probably have to do some more research to see whether we need to return to the matter on Report. I can understand the arguments about the Harbours Act and the Transport and Works Act. I am concerned that the national policy statement is a much wider system and that the conjunction of all those provisions might enable the IPC to make rulings much more widely than the Government envisage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 430, in clause 105, page 50, line 12, leave out
‘provision of or made under an Act’
and insert ‘statutory provision’.
No. 431, in clause 105, page 50, line 14, leave out
‘provisions of or made under a local Act’
and insert
‘statutory provisions of local application’.
No. 432, in clause 105, page 50, line 22, at end insert—
‘(6A) In subsection (6) “statutory provision” means a provision of an Act or of an instrument made under an Act.’.—[Jim Fitzpatrick.]

Daniel Rogerson: I beg to move amendment No. 398, in clause 105, page 50, line 23, at end insert
‘and to a resolution of both Houses of Parlaiment made under the super-affirmative resolution procedure as defined by section 18 of the Legislative and Regulatory and Reform Act 2006’.
I, too, welcome you back to the Chair, Sir John. Whether this will be one of the sittings where we make speedy progress or whether we will slow down again remains to be seen, but I am sure that you will enjoy watching our deliberations and keeping us in order.
The amendment is similar to that tabled by the hon. Member for Beckenham and is about the power to disregard legislation. We are spending a great deal of time in this Committee. We have 14 sittings in which to debate the Bill and potentially to put it into law. We do that because we take legislation very seriously and want to get it as right as is possible. If we then set up bodies that can disregard legislation and make decisions that will affect the lives of people in the areas concerned, we are going down a very dangerous road.
I did not speak to the last amendment because many of the issues addressed by it are addressed by this amendment. I hope that the Minister will forgive me if I reflect on what he said when debating the previous group. He made the case that the Secretary of State is already able to disregard legislation in some circumstances under other Acts. However, there is a fundamental difference between the Secretary of State and the IPC. We have had that argument before.
There is a difference of opinion between the Government and the Opposition parties about whether the IPC is comparable to the Secretary of State. I do not think that they are the same. People are willing to accept that the Secretary of State may, for certain technical reasons—as long as it is in the spirit of the legislation—exempt certain provisions in certain cases. I think that people will find it much harder to accept that an unelected, appointed body, at some distance from a democratic mandate, will have those powers. There are real differences between the two.
The amendment would use the super-affirmative resolution procedure, which sounds very exciting and was set up under the Legislative and Regulatory Reform Act 2006. It would still allow exemptions to be made from legislation, but there would be a powerful means of parliamentary scrutiny to ensure that such departures have been properly considered and that elected Members have had the opportunity to examine them in detail.
I accept what the Minister says about there having to be a facility to do such things to avoid going back to using private Bills. The amendment would provide for such a procedure, but it would be a little more onerous, it would give hon. Members the opportunity to participate in the process and it would take the power away from an unelected body—that is the fundamental point for me.
I hope that the Minister is prepared to consider my arguments. I hope he will see that this is not a black and white issue between the very lengthy procedure of using private Bills and the IPC having this power. There are other possibilities and, as the hon. Lady said, I hope that he will reflect on that and come back to us at a later stage. I am also interested to hear what he has to say now.
As we heard, the Bill is aimed at simplifying the planning procedure for major projects. It should make the whole process more straightforward and transparent. It should also cut out some of the repetition of areas of controversy and ensure that they occur at an earlier stage in the process. However, I still do not see that delaying something by a matter of a few weeks or months is crucial. We have talked about schemes in the past that have been delayed by five, 10 or 20 years while those processes have rumbled on. The important thing is that we get the decisions right. Allowing Parliament the opportunity to examine whether a case has been made for legislation that it has made to be disregarded in that way is an important part of the process, and I hope that the Minister will consider whether there might be a middle way between private Bills and the IPC having the power to throw out legislation whenever it wants.

Jim Fitzpatrick: When the hon. Gentleman moved his amendment, I had hoped that he was taking the time to reflect on the earlier debate and was considering offering to withdraw it, but clearly he talked himself out of that while reminding himself of his speaking notes and has decided to test it by having some discussion.
I will try not to repeat what I have said because we have discussed the safeguards on the use of legislative powers by the IPC. However, the hon. Gentleman’s amendment tries to address that with a different tactical approach to such safeguards, by providing that no order granting development consent could apply, modify or exclude statutory provision without being confirmed by a resolution of both Houses of Parliament under the super-affirmative resolution procedure.
As we know, the super-affirmative procedure is extremely onerous, at least with regard to parliamentary time, and I say that with respect. Under that process, Ministers would lay a draft order before Parliament for 60 days, during which a Select Committee of either House may recommend on specified criteria that no further proceedings be taken, in which case the order falls. Designated Select Committees in either House may make recommendations on the draft order, to which Ministers must have regard. If the Minister decides to revise a draft order, the Committee stage restarts. After 60 days, if the Minister has decided not to revise the order, the draft order is laid before Parliament and a motion to improve it is then moved in both Houses. A Minister can only make the order if both Houses resolve to affirm it. I hope that that description demonstrates the amount of parliamentary time that would be taken up in that procedure, with which the hon. Gentleman is obviously familiar.
We are unconvinced, in any case, that Parliament would welcome those time commitments back again. It was because of the time spent on private Bills relating to infrastructure development that Parliament created the Transport and Works Act regime in the first place. I question whether any of the parties at the examination stage will welcome an additional parliamentary stage after the IPC’s examination has already gone over all the facts and reached a decision.
Amendment No. 398 would certainly increase uncertainty for all parties. Therefore, I encourage the hon. Gentleman to think again about the safeguards, four of which I listed in the discussion with the hon. Lady a moment ago. I hope that that explanation and the discussion that has just taken place with regard to amendment No. 418 on the safeguards on the use of legislative powers by the IPC have given him the opportunity to think again so that he will withdraw his amendment. If he does not, I will ask my hon. Friends to oppose it.

Daniel Rogerson: I felt it necessary to discuss the amendment so that the Committee had a second chance to consider what the Minister said in response to the hon. Lady’s amendment, and the safeguards do not reassure me a great deal. It is an onerous procedure, although not a hugely lengthy one, as there are time limits imposed on it. It ought to be fairly onerous for an unelected body to disregard legislation passed by Parliament. Therefore, on this occasion I would like test the Committee’s opinion on the amendment.

Amendment negatived.

Clause 105, as amended, ordered to stand part of the Bill.

Clause 106

Exercise of powers in relation to legislation

Daniel Rogerson: I beg to move amendment No. 399, in clause 106, page 50, line 34, leave out from beginning to second ‘the’ in line 36.

John Butterfill: With this it will be convenient to discuss the following amendments: No. 400, in clause 106, page 50, line 39, leave out subsection (4).
No. 401, in clause 106, page 50, line 43, leave out ‘28’ and insert ‘56’.
No. 402, in clause 106, page 50, line 45, leave out subsection (6).

Daniel Rogerson: We reach clause 106, which I suppose is a resonant number in the planning terms that we all quote backwards and forwards to each other in a different context. No doubt we will do so again when we reach the section on the community infrastructure levy.
The amendments would widen the scope of powers available to the Secretary of State. It may seem a little odd that I should be arguing for that, and that the Secretary of State’s representative among the Ministers might be arguing against it, but it allows the Secretary of State a longer period in which to act in considering whether he is happy with a draft order. As drafted, the clause specifically limits those powers to Community law or convention rights. My amendments would widen that provision so that the Secretary of State can review the draft order and make any changes that he or she sees fit to ensure that the draft order is right, or as near to that as possible. The provision may well not be exercised a great deal, and it would not necessarily delay the process a huge amount. However, it would ensure that there is an extra safeguard for the Secretary of State to consider the draft orders and to change them if concerns arise not only from problems with Community law or convention rights, as the clause currently states. I hope that the Minister will discuss how the Secretary of State might be able to address any problems that occur with a draft order.

Jim Fitzpatrick: I ask the Committee to reject the amendments. The clause sets out a limitation and safeguard on the IPC’s ability to exercise its powers under subsection (6) in relation to a project. When the IPC proposes to make an order that will include such matters, it will have to send a draft to the Secretary of State. The Secretary of State may step in if she believes that any provision the IPC wishes to include in an order in exercise of its legislative powers will contravene Community law or convention rights under the Human Rights Act 1998. That reserve power takes the form of an ability to direct the IPC to make modifications to its draft order so as to prevent the contravention from arising.
The amendments would remove the limitation on the Secretary of State to make changes only when the order contravenes Community or human rights law. Instead, the Secretary of State could direct changes for any reason. It is not clear whether the Secretary of State’s power of direction would continue to be restricted to changes to the provisions relating to the legislative powers, or whether changes could be made to other provisions in the order granting developing consent. Even if the courts were to favour the former interpretation, the amendments have the potential to involve the Secretary of State extensively in decisions for which the IPC wants to make use of its legislative powers. Whether there is a restriction or not, it seems clear that the intention behind the amendment is to involve the Secretary of State more closely in making decisions.
We have discussed the topic at length, and the Government continue to believe that there are great benefits and a clear separation between policy making and decision making. That led us to suggest the IPC system in the first place. It would not be appropriate for the Secretary of State to direct changes to IPC decisions on any grounds other than those mentioned in the clause.
The amendments would jeopardise the benefits of the new system. The clause currently states that if the Secretary of State wishes to direct the IPC to make modifications to the draft order, she must do so within 28 days of receiving it. Amendment No. 401 would extend this deadline to 56 days, presumably because the hon. Gentleman is trying to expand the scope of decision making and so allow more time.
Nevertheless, we believe that 28 days remains the appropriate time. The Secretary of State will not need more than 28 days to determine whether a draft order contravenes Community or human rights law and to direct changes to ensure that it continues to conform. An extension of the deadline would simply slow down the process more in its final stages and therefore increase the level of cost to promoters who would be waiting for the development consent order to be made formally.
On that basis, I hope that the hon. Gentleman feels able to withdraw his amendment. Should he not do so, I will ask my hon. Friends to oppose it.

Daniel Rogerson: The Minister has clearly addressed the issues that we have just discussed. Having heard that he was quite happy for the IPC to have the provision to disregard the legislation, the amendments aimed to offer a further safeguard to that process. He and his colleague have sought throughout the debate to distinguish between policy and decision making. I should have thought that there is certainly an element of policy in deciding that legislation can be disregarded. It is a bit odd to say that that is purely a matter of deciding on an application. Surely the disregarding of legislation is in itself a policy-related decision. I am not entirely convinced by the Minister’s argument. However, we have had the opportunity to debate the principle and get it on the record that Opposition Members are unhappy about this. As others have said, we can return to this at a later stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 106 ordered to stand part of the Bill.

Clause 107

Purpose for which compulsory acquisition may be authorised

Jim Fitzpatrick: I beg to move amendment No. 433, in clause 107, page 51, line 20, leave out ‘need’ and insert ‘case’.

John Butterfill: With this it will be convenient to discuss Government amendment No. 436.

Jim Fitzpatrick: We ask the Committee to accept the amendments. Amendment No. 433 is largely technical. Instead of the decision maker needing to be satisfied of compelling need in the public interest for land acquisition, he needs to be satisfied of a compelling case in the public interest. That wording better reflects the current wording of the test set out in the Department for Communities and Local Government’s circular 06/2004 on compulsory purchases and the Crichel Down rules and hence the established case law. We have been asked by the Compulsory Purchase Association to make that change.
Clause 126 provides that time limits will apply to orders granting development consent. It specifies that development that is consented under such an order must have begun before the end of the prescribed period, although the clause allows the decision maker to set a different time limit as part of the order itself. Amendment No. 436 will allow us also to set time limits on any compulsory purchase powers contained in an order granting development consent. The time limits by which point compulsory purchase powers must be used will also be prescribed, as we expect that this prescribed period will in most cases be shorter than the time limits for the development to begin.
Again, this clause will allow the decision maker to set a different time limit as part of the order. We believe that it would be unfair and improper for developers to have the right to buy people’s land but then not do so until a significant period of time later. The ensuing blight from compulsory purchase powers that are not acted on could wreck people’s quality of life, let alone the value of their property.

Bob Neill: I welcome the amendments. I just flag up for future consideration that the Government have in this instance been prepared to return from their original proposal to the existing case law. That is sensible and makes for greater certainty. I hope that between now and Report they might like to reflect on adopting the same approach to the question of materiality that we discussed, because the same considerations apply.

Amendment agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

Bob Neill: We will not vote against clause, but I ask the Minister to reassure people who have told us that they are worried about precisely what is meant in subsection (2)(b) by the circumstances in which land is required that is “incidental to that development”. Everyone understands the concept of land for development, and to facilitate that development, but there is naturally concern that the use of the powers in this regime should be limited to that which is necessary for the development. What are the practical implications of the phrase “incidental to that development”?

Jim Fitzpatrick: The Bill outlines different powers that the IPC may have. An applicant may apply for the decision to authorise the compulsory acquisition of land that is incidental development when the land is required as part of a package of compensatory measures—for example, if the applicant has to acquire land that is protected by the habitats directive. Where there is a clear community, environmental or legislative need to make additional incidental arrangements, they are covered by that phrase.

Bob Neill: I am grateful to the Minister for that explanation. If the phrase is used in that limited way we do not have a problem with it.

Clause 107, as amended, ordered to stand part of the Bill.

Clauses 108 to 113 ordered to stand part of the Bill.

Clause 114

Commons, open spaces etc: compulsory acquisition of land

Daniel Rogerson: I beg to move amendment No. 403, in clause 114, page 55, line 33, at end insert—
‘(9) Where subsection (4) applies the Secretary of State shall publish a statement detailing the means and extent of the preservation or improvement that will be effected on the order land once compulsory acquisition has taken place.’.
The amendment relates to subsection (4), on the compulsory acquisition of land
“in order to secure its preservation or improve its management.”
We must be clear about why that land is being acquired and know exactly what will happen to it that will improve its management, as those objectives could be controversial.
The hon. Member for Bromley and Chislehurst wanted the Minister to clarify the use of the word “incidental” in clause 107, and I would welcome an explanation of how the implications for that land will be made clear if the clause as drafted is accepted.

Bob Neill: We have sympathy with the amendment and we look forward to hearing what the Minister has to say about it. It is a matter of clarification and our stance will depend on what we hear from him.

Elfyn Llwyd: I am curious about the magical figure of 209.03 sq m in subsection (5); were it 209.04 sq m, I dare say that things would not proceed. I presume that it is the standard width and accommodation for the land on each side of a pipeline that is not normally developed at any cost. There is a word for that which escapes me. I would be interested to know precisely why it is 209.03 sq m.

David Curry: I am equally somewhat arithmetically baffled. It might be that the figure refers to something defined in acreage or metres in a previous piece of legislation.
I would like some clarification from the Minister on how this provision will work for common land. There is a large amount of common land in my constituency. A significant part of the Yorkshire dales is common land. It is quite a complex business. The Bill says that if some land is taken away, compensatory land will be given on which all the old rights will apply, but it is not quite as easy as that. Rights on common land are historical rights held by various people. Those are not necessarily transferable to new pieces of land because they might not have the historical quality of the old land.
In addition, there is a complex issue regarding the Rural Payments Agency, an organisation which the Public Accounts Committee, of which I am a member, has had occasion to examine in some detail over far too long a period because of its continuing inability to get its act together. The way that the RPA recognises, or fails to recognise, the rights on common land is important. For any land given in compensation, the RPA should recognise the rights that are often endowed to grazers on common land. That should be done in terms of entitlement under the single payments system.
I know that the Minister is widely versed in all those matters, but I would like some strong reassurances about matter and, out of sheer curiosity, an answer to the question posed by the hon. Member for Meirionnydd Nant Conwy about the magical arithmetic.

Jim Fitzpatrick: I shall ask the Committee to reject the amendment. However, I am grateful to the hon. Member for North Cornwall for tabling it. I will explain why it should be rejected and will try to address the point raised by the right hon. Member for Skipton and Ripon.
The clause will place restrictions on how far orders granting development consent can go in authorising the compulsory purchase of common land, open space and fuel or field garden allotments. The restrictions are drawn from section 19 of the Acquisition of Land Act 1981. They provide that any order granting development consent that would also authorise the compulsory purchase of common land and other specified types of land can be made only after being confirmed by means of a special parliamentary procedure. There are two exceptions to that: first, where less than 200 sq m of common land will be acquired; secondly, where the applicant offers replacement land. I draw the attention of the right hon. Member for Skipton and Ripon to the explanatory notes for the Planning Bill. On clause 114, they state clearly that
“the Secretary of State is satisfied either that:
a) replacement land has been or will be given in exchange and that it will be subject to the same rights, trusts and incidents;
b) the land is being acquired in order to secure its preservation”.
I hope that that addresses the point that he has raised.

David Curry: The fact of the matter is that with a road or a pipeline, there is likely to be common land on both sides. Where will we find the land that compensates for the land that has been taken, other than outside the common? If it is outside the common, how can the Secretary of State satisfy herself, in the terms of the Bill, that those rights can be attached to the new piece of land? It will not have those rights to start with.

Jim Fitzpatrick: Clearly, were the Secretary of State not satisfied, and the parliamentary procedure used, any hon. Member could object to the proposal. I understand the important issues that the right hon. Gentleman raises on transferring rights and entitlements, but the clause simply repeats provisions that are already extant in the 1981 Act. It will not introduce any new provisions or remove any existing rights. In that sense, the clause is simply a repetition.
On the question from the hon. Member for Meirionnydd Nant Conwy about the reason for the figure of 209.03 sq m, it is a straightforward conversion from the imperial measurement in the 1981 Act. That is how we end up with that rather obscure figure.
A third exception exists. Special parliamentary procedure would not be required in this regard if the compulsory acquisition of common land is being carried out in order to secure its preservation or improve its management. Amendment No. 403 would require the Secretary of State in such cases to publish a statement explaining the means and extent of any preservation or improvements. The effect of the amendment would be problematic as it would require the Secretary of State to make a statement whether or not she was the decision maker. Furthermore, this statement would presumably be required before the decision was made, which would pose difficulties as the Secretary of State would not have been involved in the examination of the application.
However, I understand the concerns of the hon. Member for North Cornwall that the promoters of nationally significant infrastructure projects could claim to be acquiring common land for its preservation or management as a loophole to avoid needing to provide replacement land. I hope that I can reassure him and the Committee that we share his concern and that the Government are currently considering tabling an amendment that would prevent such a situation arising. With that assurance and the explanation of the other points, I ask him to withdraw the amendment. If the Government decide not to pursue the matter, he can return to it on Report. But as we intend to bring forward an amendment that should meet his needs, he should let us do the work.

David Curry: Were I to table an amendment on Report to change 209.03 sq m to 210 sq m, on the grounds that a nice round figure makes disputes less likely—I would hate to fall out with somebody over 0.03 of a metre—would it be regarded as a concession that went beyond the Government’s compass? As we have had no concessions of any description up to now, would a piece of land of about that size meet with the Government’s approval? The suggestion is just in order to have a nice, tidy metric system, which I am rather in favour of.

Jim Fitzpatrick: I understand exactly where the right hon. Gentleman is coming from. I am personally a big fan of imperial measures. I would rather have seen the figure left as it was in the Land Acquisition Act. However, we do have an amendment to go to 200 sq m, if that would suit him. It is, however, a reduction in the amount that is contained in the Bill at present. I have heard what he has said. Obviously, we will reflect on his suggestion, and he will have the opportunity to return to the matter.
Finally, if there is no equivalent land to replace it with, the expectation is that the Secretary of State would simply not certify it and it would go to a special parliamentary procedure.

Daniel Rogerson: I am grateful to the Minister. There are perhaps one or two problems with the clause in relation to that provision for compulsory purchase if it takes place without adequate explanation. I am grateful to the Minister for considering that. I am also grateful to him for standing up for imperial measurements and getting involved in that debate. As someone of a generation who was taught metric but was surrounded by adults who quoted back in imperial, I use that as an excuse for not being good at metalwork, woodwork or anything like that.
I am glad to hear that the Government are considering—[Interruption.]

John Butterfill: Order. The Committee must let the hon. Gentleman speak.

Daniel Rogerson: The key point here is certainly what the Minister was talking about and how the provision might be used as an excuse with regard to compensation. Even if it is not an excuse and there are legitimate reasons, exactly what those are must be made clear, because of stewardship issues and all sorts of matters, such as the Rural Payments Agency, as we heard from the right hon. Member for Skipton and Ripon. I look forward to seeing what the Government come up with. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 114 ordered to stand part of the Bill.

Clauses 115, 116 and 117 ordered to stand part of the Bill.

Clause 118

Public rights of way

Daniel Rogerson: I beg to move amendment No. 404, in clause 118, page 58, line 6, at end insert—
‘(2) In order to be satisfied under subsection (1)(b), the decision-maker must have regard to public consultation.’.
Public rights of way are a controversial subject; many hours have been spent along this corridor in various Committees debating rights of way and rights of access. I took part in such debates when I served on the Committee considering the recent Commons Act 2006, along with the hon. Member for Meirionnydd Nant Conwy and perhaps others on this Bill.
It is crucial that people have the chance to comment on any proposal to alter or extinguish a right of way. The clause as drafted allows a right of way to be extinguished as long as the decision maker is satisfied that
“(a) an alternative right of way has been or will be provided, or
(b) the provision of an alternative right of way is not required.”
However, it does not say how that conclusion will be drawn and what information will be available on which the decision-maker will base his decision. Consultation must be part of it, and there should be a duty to consult specifically on that issue.
The proposal to extinguish a right of way may not have been a significant part of the overall debate on the application or on site-specific national policy statements. The previous consultation will have addressed the bigger issues and people in the local community may not have noticed what was happening to the rights of way. At the end of the process when the development consent is granted it is important that the issue is drawn to the attention of local people so that they have the chance to comment on it. It may affect only one or two people but in a very significant way, and they may not have been aware of it when they were considering bigger issues connected with the development: for example, its construction, its size, transport issues and so on.
I hope that the Government will consider accepting the amendment to ensure that the decision maker has all the information to hand when deciding whether the provisions in the clause have been met.

Bob Neill: We are very much inclined to the support the amendment because we want to maximise people’s consultation opportunities in the Bill as a matter of principle. Rights of way generate surprisingly strong feelings, as hon. Members know from our constituency postbags. It is better to have a requirement to have regard to consultation and to ensure that people feel that they have a fair crack of the whip, rather than a group of dedicated ramblers, for example, going for judicial review arguing that their concerns about a right of way that is precious to them have not been properly taken on board.
I hope that the Government will be sympathetic to the amendment.

David Curry: As my hon. Friend said, this is a complex issue. On one hand, I am very sympathetic to farmers who find that a right of way goes straight across their working surfaces—for example, through the centre of a farmyard where animals are kept—and any attempt to divert it to a more sensible path usually meets with huge resistance.
On the other hand, many arable farmers display agriculture at its most bloody-minded in their absolute refusal to obey the law, which is that when land on which there is a public footpath is ploughed over, it should be made good within a certain time. But that land is often deliberately left so that to go across it is like engaging in an endurance test because walkers end up with mud up to their knees. There are important enforcement issues to be considered.
A lot of common sense needs to be brought to the issue. People need to recognise that there are genuine concerns about the management of livestock, and rights of way need to have a sensible regard to them. Equally, those historical rights of way have not been put there for the express purpose of interfering with the work of the agricultural community and irritating them, but it would be much better for all concerned if they did the minimum required to ensure that they are observed effectively. Those who do it rarely have cause for concern, but there are few issues that get people more angry than the obvious disregard of something through, as I have described it, sheer bloody-mindedness.

Elfyn Llwyd: We all know, for example, that the procedure for stopping a current right of way, a stop order, is time-honoured and defined in law, and I am sure that many of us have had experience of inquiries of that kind. I am concerned about the wording of paragraph (b), which states that
“the provision of an alternative right of way is not required.”
Who is to decide that?
Let us think about public footpaths, which often join up with one other. If a public footpath does not join up with another, is that a reason for saying that it is not necessary? For example, if there were two footpaths in a locality running roughly in the same direction, does that mean that one is not necessary? I would be wary of ditching the current procedure whereby age-old usage and local conditions are examined, along with whether they link up with others and are in reasonable repair.
I would be the first to say that there have been occasions when our friends in the Ramblers Association have suddenly decided that they use a footpath that they have not known for half a century previously, and spin out the costs in time, money and sometimes a great deal of frustration. That said, there are many public rights of way that people are reliant upon and that have existed for good purpose over many generations, so I am wary of the clause’s working because I would not like someone totally divorced from the locality to decide suddenly that a footpath is not necessary, for whatever specious reason there might be. In his response, perhaps the Minister could tell the Committee what kind of reasons are likely to be adduced to support the contention that a right of way is not necessary, as that would be quite useful for the debate.

Alun Michael: I am grateful for the opportunity to ask the Minister to clarify the wording of the clause, because I am interested in the words “is not required.” On a variety of occasions I have had to deal with the protection of rights of way and have found myself at different times on different sides of the argument. For instance, many people will recall the van Hoogstraten case, concerning an outrageous obstruction of a public footpath where maintenance of the right of way was absolutely crucial. However, there has often been obstruction to the closure of rights of way in circumstances where closure is necessary for the reduction of crime and disorder, such as on council estates and in inner-city locations.
A few years ago, we clarified some of that in legislation in order to make it possible for appropriate closures to take place. The problem is that we all want appropriate closure and protection, and the definition of which is which, as the hon. Member for Meirionnydd Nant Conwy said, is not always easy. Therefore, being absolutely clear about what is meant by the words “is not required” is important, and it would be helpful if the Minister could spell that out.
I have some concern that public opinion could be the only arbiter of whether a particular closure takes place. There are some places where all sorts of closures would take place on the basis of instinctive public opinion, despite their being necessary for people to get around. In other circumstances, public opinion is absolutely the right criterion to use. Again, the devil is in the detail, so my concern is to be absolutely clear what the clause means and to ensure that there is no danger of unintended consequences, where wording is intended to mean one thing but perhaps at a later stage could be interpreted through case law to mean something rather different. Therefore, the clearest possible explanation from the Minister of the test for whether an alternative right of way is required would be extremely helpful.

Jim Fitzpatrick: The Government do not support the amendment. The clause specifies that an order granting development consent cannot extinguish public rights of way over land, unless the authority making it is satisfied that alternative rights of way have been provided or that none are required. That point has been raised by my right hon. Friend and other colleagues in the debate. The procedures are drawn from section 32 of the Acquisition of Land Act 1981.
The amendment would compel the decision maker to have regard to public consultation before deciding that an alternative right of way is not required. That might prove difficult if the decision maker was required to hold their own public consultation for the purposes of this section. Such an additional consultation would be expensive and could delay unreasonably the final determination of the application.
In any case, we believe that the amendment is unnecessary. The application as a whole would already have undergone extensive consultation, been widely publicised and been examined in detail. It would have been open about any rights of way to be extinguished, and any person concerned about the proposal would have the opportunity to make representations to the promoter, or subsequently to the IPC on that matter.

Elfyn Llwyd: That is the crux of the matter: “has the right to make representations”. As the law stands, the person would have an opportunity to address, effectively, a tribunal hearing, or an inquiry. Therefore, the member of the public loses the right to challenge that procedure at inquiry level that they would previously have had. Now we are down solely to representations; that is a major concern.

Jim Fitzpatrick: As I said, the application would have to have been open about any rights of way, and any person concerned could make representations. Any representation would have to be taken into account by the IPC if it was relevant, particularly in deciding whether a right of way was needed. We understand the importance of the issue.
We have the power to issue guidance on consultation in clause 37, which we have previously discussed. We intend that it would include guidance on the right of way. An example of a right of way that may no longer be required, as asked for by the hon. Member for Meirionnydd Nant Conwy, would perhaps be a cliffside path that has been washed away by erosion but would still exist in law, or a right of way that has fallen into disuse. Apparently there is clear case law on those types of definitions and it would apply in those instances.

Alun Michael: It is not clear to me what my hon. Friend is drawing from those two examples. For instance, a clifftop right of way, which is an important aspect of access that Government policy supports strongly, would surely still be required. Is that the interpretation he is placing on that example? Also, he used the words “needed” and “required”. The Bill contains the word “required”, but it is not clear from what he has said what is meant by that.

Jim Fitzpatrick: I have been trying to reassure the Committee that there is case law in respect of the matter, that there are instances in which there will no longer be a requirement for a particular right of way, that the representations that individuals can make are already contained within the consultative procedures, and that there would be no loss of rights, as there would be relevant representation for the examination, including the open floor stage.

Elfyn Llwyd: The Minister is obviously engaging fully with the matter. All the case law is predicated on the fact that there is currently a statutory right to a full inquiry. That is the crux of the matter. I do not want to delay matters unnecessarily and perpetuate quasi-tribunals that might not be of any use, but we are talking about a time-honoured statutory procedure. People who feel aggrieved because they think they will lose what they believe to be their age-old rights of access will no longer have recourse to an inquiry. They will simply be allowed to send in a submission within the ambit of the planning procedure; in other words, they will be consulted in a way, but that is all.
As the Minister said, the case law on the issue is extensive, and often decisions are made on the quality and quantity of use—how many people use a footpath, how long it has been used, whether there is evidence that the local council have maintained it or it has fallen into disrepair and so on.
The Minister’s examples are obvious ones that would cause no problem to anyone, but many fall into another category, which would create problems. For example, people rely on footpaths for recreation and other purposes, and they might find their representations on what might seem to be a trivial matter have been brushed aside in the interests of a larger scheme. For a local village or town the matter is not trivial but very important. The Bill is in danger of trampling on people’s ancient rights.

Jim Fitzpatrick: I recognise the sensitivity and significance of the issue. We have had many discussions about previous procedures and ways of doing things, and this proposal changes things, but we want to reassure everyone who is interested that we are trying to strengthen the consultative arrangements by having a pre-application stage and a hearing.
I tried to explain to the hon. Gentleman that there will be no loss of the right to complain to the inquiry. There will be relevant representations for examination during the open floor stage of hearings. Individuals will still have the right to make those representations—
Mrs. Laitrose—
Mr. David Jones (Clwyd, West) (Con) rose—

Elfyn Llwyd: The open floor does not assist me very much, because the IPC could decide not to allow examination or cross-examination at that stage. Therefore, any objector could be muffled.

Jim Fitzpatrick: I shall take interventions from the hon. Lady and the hon. Gentleman.

David Jones: I want to underline what the hon. Member for Meirionnydd Nant Conwy said. I have been involved in many inquiries about public rights of way and I know the fundamental importance of cross-examination. The veracity or otherwise of evidence of long use can usually be tested only by assiduous cross-examination. If that is to be abandoned as a result of the proposed procedure, people’s rights will be trampled on, as the hon. Gentleman said.

Jim Fitzpatrick: We are returning to previous discussions about the adequacy of the consultative arrangements being put in place, whether the IPC will be able to satisfy people that their concerns are being listened to and whether they have an adequate opportunity to put them before the appropriate authorities. We are confident that the arrangements we propose are more than adequate, and we oppose the amendment on that basis.

Daniel Rogerson: The Minister sets great store by the fact that there will be an examination of the overall application. However, subsidiary changes are proposed in this and other clauses to what will happen in the local area based on the main applications. The wider environmental impact will be considered primarily, and that will be people’s biggest concern. Consideration will also be given to transport implications and all sorts of matters that were set out in the national policy statements and how they should be applied locally once an application has been submitted.
Rights of way will not necessarily occur to people straight away. They might come to the fore only later on, when it would be too late for them to be considered in the open hearing. People will quite rightly have been exercised by the bigger picture and the totality of the development. There might be other provisions and unforeseen consequences. In the application and consultation, the applicant may have put on page 753, line 22: “PS: We’re going to take away your right of access.” That is not good enough. On matters as contentious as rights of way, where there are established processes for addressing the issues, I think that the Government have gone far enough. We have heard from hon. Members how important such provisions are to people.
Very generously, the Minister said that he will look again at the provisions under clause 114. I think that it is unfortunate that he has decided not to do so under this clause. Having heard about these concerns from hon. Members of all parties, it is important that we test the Committee’s opinion.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 12.

Question accordingly negatived.

Clause 118 ordered to stand part of the Bill.

Clause 119

Excavation, mining, quarrying and boring operations

Question proposed, That the clause stand part of the Bill.

Jim Fitzpatrick: The clause would place a restriction on the ability of a decision maker to make an order granting development consent that authorises the carrying out of specified excavation, mining, quarrying or boring operations in a specified area. It specifies that the decision maker can make such an order
“only if the development to which the order relates is or includes the underground storage of gas.”
The provision was aimed at ensuring that a development consent order could authorise controlled operations in the same way as an authorisation under section 5 of the Gas Act 1965. However, it is not now intended that the IPC should be responsible for authorising this type of excavation work in the vicinity of a nationally significant infrastructure project. Instead, the Secretary of State will remain responsible for such authorisations. As a consequence, the clause is not required. The Government therefore propose that it be removed.

Question put and negatived.

Clause 119 disagreed to.

Clauses 120 to 122 ordered to stand part of the Bill.

Clause 123

Highways

Jim Fitzpatrick: I beg to move amendment No. 435, in clause 123, page 58, line 37, at end insert—
‘(1A) If an order granting development consent includes provision authorising the charging of tolls in relation to a proposed highway, the order is treated as a toll order for the purposes of sections 7 to 18 of the New Roads and Street Works Act 1991.’.
The IPC will have powers under clause 105(4) to provide for the charging of tolls in a development consent order. Clause 123 specifies that an order granting development consent can only authorise the charging of tolls in relation to a proposed highway if that is requested in the initial application. It is entirely possible that funding arrangements for a proposed highway may be based on predicated tolls being charged.
The amendment is a technical one to ensure that, when the IPC makes an order authorising the charging of tolls in relation to a proposed highway, that order is treated, for the purposes of related legislation such as the New Roads and Street Works Act 1991, as a toll order. That will ensure that the order granting development consent has legal effect in other legislation governing toll roads.

Amendment agreed to.

Clause 123, as amended, ordered to stand part of the Bill.

Clauses 124 and 125 ordered to stand part of the Bill.

Clause 126

Duration of development consent order

Amendment made: No. 436, in clause 126, page 60, line 3, at end add—
‘(3) Where an order granting development consent authorises the compulsory acquisition of land, steps of a prescribed description must be taken in relation to the compulsory acquisition before the end of—
(a) the prescribed period, or
(b) such other period (whether longer or shorter than that prescribed) as is specified in the order.
(4) If steps of the prescribed description are not taken before the end of the period applicable under subsection (3), the authority to compulsorily acquire the land under the order ceases to have effect.’.—[Jim Fitzpatrick.]

Clause 126, as amended, ordered to stand part of the Bill.

Clause 127

When development begins

Question proposed, That the clause stand part of the Bill.

John Butterfill: With this we may discuss clauses 128 and 129 stand part.

Jacqui Lait: I have only a brief question on clause 129. I note that it refers to a building being erected, extended, altered or re-erected. The building can only be used for
“the purposes for which the building is authorised to be used.”
For how long does that definition extend? Our country is covered with buildings that started with one purpose and have been converted to another. If an infrastructure development becomes redundant at some point, the associated buildings become redundant—the infrastructure could remain, but, for all sorts of reasons, the building could become redundant. Is there, in essence, a covenant on that building, or can its use be authorised to be changed?

Alun Michael: I have a question about clause 129(2), which states:
“If no purpose is so specified, the consent is taken to authorise the use of the building for the purpose for which it is designed.”
I would be grateful if my hon. Friend can explain how the purpose is defined for that subsection. I ask because of a recent planning application in my area where there was a debate between members of the public and the local authority, which had to reach a determination on the application, about the purpose of a building that was being converted and the intentions of the developers. Sometimes, the purposes are very straightforward—for instance, with residential or commercial properties—but sometimes they are considerably less clear, as with this particular application. Will he explain what is meant by
“the purpose for which it is designed”?
Is it a question of what is set out in the application or is there some other meaning?

Jim Fitzpatrick: Clause 129 specifies that where a development consent order is made that includes the erection or alteration of a building, the order may specify the purposes for which the building can be used. Where the development consent order is silent about this matter, it is to be assumed that the building will be used for whatever purpose it was designed. That provision ensures that the IPC can specify, in the terms of a development consent, what a building will be used for and thereby ensure that, subject to the applicant receiving any necessary operational or safety consents from the appropriate regulator, there will be no regulatory gap preventing him from using the building for the purpose for which consent was granted.
In response to my right hon. Friend, the nature or purpose of a building will be determined and defined by the application. In response to the hon. Lady, a building can be used for the purpose for which it was intended or designed, but not only for that purpose.
I must confess that on reading clause 129, I consulted my officials because it is the last clause that I am responsible for in this sitting. I sensed that this was the elephant trap because it did not look very convincing to me. I am assured very strongly that this provision is for legal clarity in respect of an application that is submitted for consent. It will ensure that there is no gap at the end of the application and that, as I have explained, the building can be used for the purpose for which it was designed or for that which is stated in the application—whichever is appropriate.

Alun Michael: I think that I understand what my hon. Friend is saying, but I would like to be clear. The words in the clause mean that it is not what a designer had in mind when they were drawing the plans, but what is stated by the applicant in the application for permission that determines the purpose.

Jim Fitzpatrick: My right hon. Friend is very experienced in bringing legislation forward and in interpreting the words that are on paper. Clause 129(2) states:
“If no purpose is so specified, the consent is taken to authorise the use of the building for the purpose for which it is designed.”
If the application does not say that it will be an extraction room, but it is clearly an extraction room because of the nature of the equipment that is in it, the fact that the application is silent on that issue will give some certainty to those who are watching the construction as to the nature of the building.

Jacqui Lait: So that I have got it on the record, if a building subsequently becomes redundant, can somebody apply for it to be used for another purpose? I would like just a quick yes or no.

Jim Fitzpatrick: The answer is a clear yes, as I tried to explain.

Question put and agreed to.

Clause 127 ordered to stand part of the Bill.

Clauses 128 and 129 ordered to stand part of the Bill.

Clause 130

Development without development consent

Bob Neill: I beg to move amendment No. 27, in clause 130, page 60, line 39, at end insert—
‘(1A) The measuring and marking out of land shall not constitute development for the purposes of this section.’.
We have another change of personnel and voice to keep everyone with us. The amendment would ensure that there is an effective time limit for the new criminal offence. After all, it involves a substantial financial penalty: £50,000 on summary conviction, which is well above the normal rung for such matters, and an unlimited fine on indictment. Therefore, it clearly envisages a harsh penalty.
Against that situation, it is right and proper that there should be an effective time limit for the bringing of proceedings, as with all criminal offences. Clause 132, as it stands, provides for a four-year time limit for bringing charges for committing the new offence—[Interruption.] I have read the wrong sheet, and am grateful to hon. Members for correcting me. I have my briefing notes here and have moved on to the wrong clause.
When dealing with a substantial financial penalty, it is important that it is proportionate to the operation concerned, and amendment No. 27 would deal with some case law, sometimes referred to as the Malvern hills case, about the definition of what the commencement of development can be. In a nutshell, the Malvern hills case indicates that setting out the pegs for laying out a road constitutes the commencement of development. Perhaps other members of the Committee have a more detailed awareness of these issues than I do, but that case certainly seems to be well settled and the lawyers, who naturally take an interest in those matters, have advised us that that is the potential situation.
Is it really proportionate, which is the issue that the amendment seeks to raise with the Government, to put someone at risk of such a substantial financial penalty when all that has happened is in itself a minor operation? I can see that it has consequences and should be stopped if unauthorised. We are not talking about anything to the contrary, but there are other mechanisms to stop that development. It seems to us that that does not come into the same category of someone who carries out a significant piece of development.

Elfyn Llwyd: The hon. Gentleman is right, because when one looks at clause 127(2)(e), one sees that it states that “Material operation” will include
“an operation in the course of laying out or constructing a road”.
An anomaly will be entrenched in the Bill.

Bob Neill: I am grateful to the hon. Gentleman for that. He reinforces our point. Given that that could be rectified much more readily through the other procedures available, it seems excessive that someone who simply sets out the pegs potentially commits an offence that brings down such a penalty.
Part of our concern throughout has been that the Bill and the regime that it sets out command public confidence. It seems to be excessively heavy handed and out of proportion for someone who might act in good faith to be liable for that criminal offence because of a misapprehension about the position, despite having been put right. Indeed, a four-year time limit for the bringing of proceedings seems to be simply too much, and that is why we seek to place that modest, but important, limit in the interests of fairness.

Elfyn Llwyd: I support the amendment and will give an example from the area in which I live. In Aberdovey, which is a small, charming village on the Cardigan coast, about 200 planning permissions going back to the 1960s are still viable because of a tiny amount of work on laying out the roadway into the village. The consequence has been that anyone along that coast seeking planning permission, even for one house, is told, “I am sorry. There are too many permissions already.”
I agree that a development should be far more substantial to qualify as material. Otherwise, unfortunately, there will be land banks here, there and everywhere. People will decide to invest their money in a piece of land for development, put in a slight amount of infrastructure, leave it there for 25 years, and, bingo, there is their pension policy. At the same time, it will skew all planning policy and practicalities in the local area, as I have seen, to the detriment of my constituents. I hope that the Government will seriously consider the amendment.

Parmjit Dhanda: It is a pleasure to serve under your chairmanship, Sir John, albeit in the autumn days of this Committee sitting.
I will give some reassurance to the hon. Members for Bromley and Chislehurst and for Meirionnydd Nant Conwy. The amendment seeks to ensure that the measuring and marking out of land does not count as development, for which a person could be prosecuted if they did not have a consent order. Marking out land is quite different from the definition of laying out a road—they are quite separate and different things. I do not believe that the amendment is necessary. Under clause 127, development will be taken to have begun when a
“material operation comprised in the development begins to be carried out.”

Bob Neill: Is the Minister saying that those who advise him can reassure me that the laying out of pegs on the site, under circumstances such as we and the hon. Member for Meirionnydd Nant Conwy have been talking about, would not be caught by the definitions in the Malvern hills case?

Parmjit Dhanda: I will make the situation clear by going through the list of enforcement issues that are relevant and those that are not, for the benefit of the Committee.
A material operation is defined in clause 127(2) as
“(a) a work of construction in the course of the erection, extension, alteration or re-erection of a building”.
—that is obviously not a mapping out, as in the hon. Gentleman’s amendment—
“(b) a work of demolition of a building;
(c) the digging of a trench which is to contain the foundations, or part of the foundations, of a building;
(d) the laying of an underground main or pipe—
(i) to the foundations, or part of the foundations, of a building, or
(ii) to a trench...
(e) an operation in the course of laying out or constructing a road, or part of a road;
(f) a change in the use of land which constitutes material development.”
The measuring and marking out of land therefore does not count as development under the legislation, with the sole exception of laying out a road that is specifically catered for.
I must re-emphasise to the Committee that clause 130 is specifically about nationally significant infrastructure projects that do not have consent. That is important. Clause 131 is a slight variant on that, and deals with a situation where a person has consent but is deviating from it.

Daniel Rogerson: The Minister is right to point out that some of these matters might more properly have been discussed under other clauses—such as clauses 126 and 127, on when development begins—that we have skipped over as we have rapidly made progress.
I do not know whether the Government have considered this question, and I hope that it is not out of order, Sir John, but it concerns me whether, once development has begun, there is a period within which it should be completed. We have doubtless all seen examples in our constituencies of a building being begun and then being left for a long time, but the development consent standing because some work has been going on. Have the Government looked at that issue, too? A major infrastructure project could be begun and then halted, for whatever reason, for a number of years, with environmental consequences for people in the surrounding area.

Parmjit Dhanda: Yes, and the hon. Member for Bromley and Chislehurst is coming to that issue with amendments to clauses in part 8. I hope that I have managed to give the assurances that the hon. Gentleman sought. The amendment is consequently unnecessary and I urge him to withdraw it.

Bob Neill: I am only partly reassured. I understand the Minister’s intentions, but concern remains about how the definitions that he read out from the Bill are likely to be construed if it comes to litigation in court. We have imported “material development” from the town and country planning legislation into the second element of the test. The Malvern hills case was decided under that legislation. I am not sure that we have yet got to a stage where we have effectively excluded a result that we both seem to want to achieve. Perhaps I can leave it this way: we will take further advice. If I do not press the amendment now, perhaps there could be some discussion to ensure clarity. If not, we might need to return to this issue on Report. That said, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

David Curry: My hon. Friend the Member for Bromley and Chislehurst is concerned that developers might get walloped unfairly for what they do. My concern is that they do not get walloped enough for the things they do unfairly. Some developers are given an inch and they try to take a mile. They know that the local authority will be very reluctant to take enforcement action because it costs an arm and a leg. The entire budget of the smallest local authorities that are planning authorities may be £7 million or £8 million. Even a fairly significantly sized local authority would have a budget of less than £20 million. Planning officials are therefore extremely reluctant to commit the local authority to embark upon a great case for enforcement. Equally, they are often reluctant to refuse planning permission because they do not then want to have to face the costs of going to the inquiry and contesting that planning permission.
In many ways the odds are rather stacked against local authorities. We know that some companies resent the whole business of planning permission in any case; they regard it as unnecessary bureaucratic interference. They get permission for X, and they do X plus, and there is a deliberate challenge to the local authority to take enforcement action. The roof-lines might be somewhat higher than agreed; the intensity of development might be somewhat more than planned. Equally, we all know that in the corner of a field there might be a shed, and five years later 5 acres of landscaped gardens and goodness knows what else has been built there without planning permission. A deliberate gamble is taken that the local authority will eventually cave in.
I subscribe to the belief that we should try to make planning more rapid, effective and transparent, but the quid pro quo is that where people deliberately try it on, the powers to prevent that from happening should also be reinforced. I should be grateful if the Government considered looking at this issue so that, perhaps during the Bill’s later stages, we can get more of a balance. We need to balance the acceleration that we all agree is necessary with the reassurance that it will not mean that people who are somewhat cavalier with the rules will get away with it, because of local authority reluctance, for whatever reason, to get into the significant legal tangle of taking enforcement measures that could even result in the demolition of the development itself.

Parmjit Dhanda: That is a very helpful contribution, and those are the steps that part 8 tries to take. It is not just about the hefty fine of up to £50,000 for developments without consent, which has already been mentioned. The later clauses in part 8 make it incumbent on developers who do not have permission to take down the development in question in some cases; indeed, under certain clauses the local planning authority can enter the land, take the development down and bill the developer for doing so. I hope that that reassures the right hon. Gentleman that this clause and others in part 8 take into account his understandable concerns.

Question put and agreed to.

Clause 130 ordered to stand part of the Bill.

Clause 131 ordered to stand part of the Bill.

Clause 132

Time limits

Bob Neill: I beg to move amendment No. 420, in clause 132, page 61, line 28, leave out paragraph (a).
I return to the matter that I inadvertently anticipated earlier—the time limits for bringing prosecutions. The clause puts a four-year time limit on bringing prosecutions for the new offence of carrying out development without consent or of breaching the terms of an order granting consent. However, under the clause, someone could be charged with one of the offences after the expiry of the four-year time limit if the local authority had applied for an injunction under clause 141 or if it had been served with an information notice under clause 137. The injunction probably relates to something that is fairly significant: a development that actually happened and on which some restraint is required. There will be some certainty in such a case because there will be a hearing on the injunction and the court will make a definitive order.
I am more concerned about the use of the information notice under clause 137 because it would require the person on whom it is served to provide information about any operations they are undertaking to enable the authority to determine whether one of the criminal offences has been committed. The notice would then hang over that person, whether or not the information process is proceeding. Once the notice is served, the time that it takes for that notice to be complied with—it will depend on the complications and nature of the works that are going on—will extend the time available for bringing proceedings. If an authority were strongly opposed to a developer, the time available could be stretched considerably longer than the four-year period.
Most people who have been involved in these things know that quite often in development, there may be a minor infringement of the conditions by, perhaps, a subcontractor acting in good faith. If those infringements are dealt with sensibly, the problem can be put right. In theory, however, the authority would be able to serve an information notice and trigger the provisions of the Act. Even if the information notice was served very shortly before the expiry of the four years, until the whole rigmarole was complied with, the risk of criminal prosecution would arise.
If a lot of notices were served, one after the other—as far as we can see, there is nothing to stop that if the local authority comes back with another notice after the first one has been served—the time in which there is a threat of prosecution would continue well beyond the four-year period. I suspect that that is an unintended consequence of the proposal, and the amendment would remove it.
Our view, which is held by many practitioners in this sector, is that although we do not have a problem in principle with the enforcement provisions of development consent orders, they might be better served if they followed the existing enforcement regime under section 171B of the Town and Country Planning Act 1990. That is why we tabled the amendment and it will be interesting to hear what the Minister says.

Daniel Rogerson: I listened closely to what the hon. Member for Bromley and Chislehurst said in his case for the amendment. However, I also have in the back of my mind the case put forward by the right hon. Member for Skipton and Ripon about ensuring that enforcement is as powerful as possible. There are many cases every week around the country of smaller developments of the nature that he mentioned, such as where roof lines are built slightly too big. However, we are talking not about that, but about very significant projects.
It is unlikely that the developers that we are talking about, having invested so much time in this process, will step outside the law. I do not think that there will be many cases of that. Having invested much time and effort in getting a huge application such as this through the process, it is unlikely that they will jump the gun. However, it is important that there is a clear provision that is as flexible as possible for enforcement to be carried out. On this occasion, I am not sure that I agree with the hon. Member for Bromley and Chislehurst.

Parmjit Dhanda: There is an interesting piece of triangulation on the Committee because I am inclined to agree with the hon. Member for Bromley and Chislehurst. In a peculiar way, that gives the right hon. Member for Skipton and Ripon what he has been asking for all this time. He was saying that we have not given in on anything.
I suspect that the hon. Member for Bromley and Chislehurst has been talking to his old friends in the Law Society, and I confess that he is on to something. He expressed concerns that the clause, which is about invoking time limits for enforcement action, will mean that if an information notice is served under clause 137 before the expiry of the four-year time limit, a developer could find themselves faced with the indefinite threat of legal proceedings, under one of the new criminal proceedings. That may well happen because a local authority that is for ever opposed to a nationally significant infrastructure project could choose to use this process as a mechanism to keep the enforcement going. I am sympathetic to that point.
The Government are considering the application of time limits to the enforcement provisions. In doing so, we will be happy to take the hon. Gentleman’s concerns into account and will come back to him at a later stage. Although I am not accepting his amendment as worded, due to the potential consequences attached to it, I am happy to return to the matter and take on board what he has said. He has a fair point.

Bob Neill: I am grateful. In a different Bill Committee, on which the Under-Secretary of State for Transport, the hon. Member for Poplar and Canning Town (Jim Fitzpatrick) served, this would have been described by my hon. Friend the Member for North-East Bedfordshire (Alistair Burt) as a “champagne moment”. I am very grateful to the Minister and will relay what he has said back to those who open champagne in the Temple and the Inner Temple. I accept his point and if we can find a way forward, I will be grateful. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 132 ordered to stand part of the Bill.

Clause 133

Right to enter without warrant

Bob Neill: I beg to move amendment No. 28, in clause 133, page 61, line 37, at end insert
‘provided that 24 hours notice of the intended entry has been given to the occupier of land.’.

John Butterfill: With this it will be convenient to discuss amendment No. 29, in clause 133, page 61, leave out lines 38 to 40.

Bob Neill: The amendments are about proportionality in respect of rights of entry. Quite simply, they seek to redress the balance. We understand that there will be circumstances in which rights of entry are appropriate, but we are concerned that the Government are going too far in giving draconian powers of entry to people’s property and, in some instances, to what may be their home.
We do not agree with the Government’s contention that it could be appropriate for somebody to enter a dwelling without notice, and so have tabled amendment No. 29. The Government are proposing that someone can go in with 24 hours’ notice being given to the occupier of a dwelling. We think that that is very limited. If somebody is away, for example, that does not give them very much time at all, yet it is a significant intrusion into their home. That is why we are saying that if someone wants to go into someone’s home, they should get a warrant under clause 134 rather than rely on the power to enter without one under clause 133.
I understand that there will be circumstances in which someone will wish to enter other premises—business premises and so on—and, because that involves less intrusion into people’s private lives, to which they have a right under domestic law and the European convention on human rights, we do not have quite the same difficulty with that. However, we think that there ought to be an attempt to give notice first.
The trigger should be that if the premises is a business premises, someone should seek to give notice and, if that is not possible, go in without a warrant. If it is a dwelling house, or a family house, it is not that onerous to get a warrant. It does not really take that long to get one. Those of us who have had experience in criminal law will know that a warrant can be applied for quickly if there is an emergency. I appreciate that there will sometimes be such cases, but entry to a dwelling should require the extra safeguard.

Parmjit Dhanda: I am afraid that I am not about to give in again to the hon. Gentleman. [Interruption.] The bubbles are evaporating indeed.
The clause is about enforcement. The idea of a dwelling on the site of a nationally significant infrastructure project is an interesting notion. It almost goes back to the point made some days ago by the hon. Member for Beckenham about nuclear fusion—perhaps within a household, who knows?
It is quite fair for the clause to require 24 hours’ notice if we are talking about the remote possibility of a house on a site where there is development taking place, or if there is a nationally significant infrastructure project at the bottom of the garden. The Bill is consistent with the Town and Country Planning Acts. It gives the local planning authority the element of surprise in the likely scenario that it is actually the developer on the site who is perhaps doing something that he should not be doing. For those reasons, enforcement is important.

Bob Neill: I shall return to the issue of what dwelling houses might be on a site. Is the Minister’s advice that the clause would not permit entry into a dwelling that is not on the site of a major infrastructure structure project—it might be the home, let us say, of the developer or the engineer—to seize documents, plans and other correspondence that might indicate whether instructions had been given to carry out works on the site? It seems that if someone were carrying out the investigation, one of the things that they might seek to do is to go into the offices to get the drawings, for example. That is the situation that I am particularly interested in. Is the Minister saying that that would not be covered?

Parmjit Dhanda: I am saying that the clause is specifically about getting on to a site. We will be moving on to another clause, and amendments tabled by the hon. Member for North Cornwall, that deal with a local planning authority not being able to access a site, the role of the justice of the peace, and giving a period of forewarning prior to accessing a site. Clause 133 gives an important power to local planning authorities to get on to a site, and to do so with an element of surprise.

Bob Neill: I understand much of what the Minister says. I do not want to sound ungrateful, but I have some residual concerns. It is possible that they can be met, but first I should speak again to those to whom I spoke about the previous clause. If concern remains, we can return to the matter on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 133 ordered to stand part of the Bill.

Clause 134

Right to enter under warrant

Daniel Rogerson: I beg to move amendment No. 405, in clause 134, page 62, line 16, leave out ‘a reasonable period’ and insert ‘14 days’.
This debate is related to that prompted by amendments Nos. 28 and 29. It is to do with the phrase “reasonable period”. Hon. and learned Members may well tell me that that is a standard phrase and that I should not be alarmed about it. The amendment simply suggests a period within which people should be notified that a warrant has been issued. The word “reasonable” could be open to interpretation.

Bob Neill: I have some sympathy with the amendment. I am open-minded about it because such phrases are used in other statutes. However, there is always an advantage in clarity, so I shall be interested to hear what the Minister has to say.
Sadly, the term “hon. and learned” has a particular connotation in the House; it requires appointment to a rank that, despite my career at the bar, no Lord Chancellor has yet thought suitable for me. If the hon. Gentleman wants to write a note for next year’s round, his support would be gratefully received.

Parmjit Dhanda: The clause is particularly relevant in the event that entry has been refused to a development site. It provides that a justice of the peace may issue a warrant authorising a person authorised by the local planning authority to enter the land. The conditions are
“that there are reasonable grounds for suspecting that an offence...is being, or has been, committed”
under clauses 130 or 131; that entry to the land has been or is likely to be refused; or that it is an urgent case.
Clause 134(4) provides that entry is to be regarded as having been refused if no reply to request for admission has been received within a reasonable period. The hon. Member for North Cornwall suggests 14 days—a popular time for him—but the amendment is not necessary. I shall explain why.
The provision is based on similar provisions in the town and country planning regime, which have historically worked very well. It allows the JP, when considering an application for a warrant, to reach a view on whether a reasonable period has been given for a response. The JP may well decide that that period should be 14 days, or that it is more urgent than that. I suggest to the Committee that the provision has worked well in town and country planning, and that we should follow that model in part 8 of the Bill.

Daniel Rogerson: I am grateful to the Minister for that confirmation. I suspected that there might be precedent, and I am grateful to him for pointing it out. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 134 ordered to stand part of the Bill.

Clause 135 ordered to stand part of the Bill.

Clause 136

Rights of entry: the Crown

Question proposed, That the clause stand part of the Bill.

Daniel Rogerson: The clause deals with an issue that has concerned me throughout: Crown land being given an exemption that does not apply to any other land. I can see that there are particular facilities or areas to which one would not expect a right of entry. There is a facility in my constituency operated by GCHQ that I would not expect the local planning authority to be able to get access to easily. However, Crown land is a wide definition, and an awful lot of land could be covered. I am concerned that the Government could perhaps have defined it a little more closely and that Crown land is too widely defined.

Parmjit Dhanda: I shall aim to provide clarity for the hon. Gentleman. The clause specifies that the rights of entry that we have just discussed under clauses 133 and 134 do not apply to Crown land. Clause 175 states that offences under the Bill do not apply to the Crown; hence, powers of entry are not required. That clause is equivalent to section 296A of the Town and Country Planning Act 1990. It is a standard provision that the Crown cannot commit an offence under planning legislation.
Rights of entry to Crown land are strictly controlled. Although we have disapplied them under part 8 of the Bill for the reasons that I have set out, other rights of entry powers can be exercised if the appropriate Crown authority gives consent, such as under clause 48. Examples of such an exemption include Ministry of Defence land, in relation to which it is clearly right that there should be additional safeguards. In short, the intention is to make the Bill consistent with the 1990 Act.

Daniel Rogerson: I am grateful for that clarification. I still think that the clause perhaps captures too much land, but I shall not seek to press the matter.

Question put and agreed to.

Clause 136 ordered to stand part of the Bill.

Clause 137

Power to require information

Question proposed, That the clause stand part of the Bill.

John Butterfill: With this it will be convenient to discuss clauses 138 to 142 stand part.

Bob Neill: I have one question on clause 138 and offences relating to information notices, on which I am sure the Minister can help me. Earlier in the Bill, in clause 130, we set up the offence of development without development consent, which is punishable on summary conviction and on indictment. Interestingly, in clause 138, particularly subsection (4), we are considering—it is a common enough formulation—an offence that, under certain circumstances, such as making a statement that one knows to be false or misleading in material respects, might be argued to import dishonesty, and probably would, given the facts of certain cases.
I imagine that the reason for the provision is that the Minister seeks to follow the Town and Country Planning Act 1990 approach and other precedent. We have talked about lower-level breaches, and I shall sound like my right hon. Friend the Member for Skipton and Ripon now, but when there is dishonesty involving a potentially important breach in relation to a substantial project with significant sums at stake, would it be appropriate to make that offence triable on indictment, too?

Parmjit Dhanda: Again, the hon. Gentleman makes a good point. If he looks closely at clause 138(3), he will see that for failing to respond to the information notice, one can incur a level 3 fine, which is £1,000. However, he makes a fair point that if one deliberately misleads, there should be a bigger fine, and subsection (5) states that if there is an offence under subsection (4), the fine will not exceed level 5, which is £5,000. So we have taken the issue into consideration and I hope that he will be satisfied, because we have done so for the reasons that he outlined. If someone deliberately misleads, it is a bigger offence.

Bob Neill: I understand and am grateful to the Minister. In certain circumstances, however, given the size of the project and what is at stake, one might be tempted—if one were being cynical—to say, “Cheap at the price.” I shall not press the point, but perhaps the Minister will think about it again, because I can envisage circumstances in which the misleading behaviour, if it were shown to be seriously dishonest, could be as grave—in terms of public perception—as the offence under clause 130.

Parmjit Dhanda: It is important to remember that clause 138 deals with offences relating to information notices, not specifically to the development of a nationally significant infrastructure project on land, so the provision is proportionate for offences relating to information notices.

Question put and agreed to.

Clause 137 ordered to stand part of the Bill.

Clauses 138 to 142 ordered to stand part of the Bill.

Clause 143

Planning obligations

Bob Neill: I beg to move amendment No. 421, in clause 143, page 66, line 8, at end insert—
‘(za) in subsection (1) delete the words “interested in land in the area of a local planning authority”;’.
The amendment would assist the Government in their objectives and improve the Bill. It may sound technical, but the reason for adding,
“interested in land in the area of a local planning authority”,
is that the Town and Country Planning Act 1990 regime allows a person to enter into a planning obligation only if they hold an interest in land that is subject to development. There are proposed amendments to section 106 of the 1990 Act and we are not unsympathetic to them, but the amendment before us suggests that to make the system work better, it might be sensible to extend matters, because section 106 does not permit every promoter of an infrastructure project to enter into a planning obligation.
It might help if I gave an example. If an application for development consent includes power for the promoter of the infrastructure project to acquire land by compulsory purchase—an example would be the site of a power station—the promoter would enter into the planning obligation only after the compulsory purchase order process had been completed. Only at that point will he hold an interest in land for the purposes of the Act. If the promoter proposes to install overhead power cables or underground pipelines, we are advised that the current wording would mean that he would have no interest in the land at the time that the application for development consent goes in. He will have interest in the land only after the development consent has been obtained and after the promoter has exercised the compulsory acquisition powers that come with it. That means that he cannot enter into a planning obligation at the time that the development consent is granted. We should have thought that it was probably desirable from the Government’s point of view, as much as anyone else, that he be able to do so.
That is really what we are looking to achieve here. This matter has been raised by a number of practitioners in the field. We are sympathetic to the objectives, but we wonder whether there is an opportunity to improve the Bill’s operation by enabling people to enter into a section 106 agreement at the stage of consent. That would be consistent with the desire to have as much pre-application discussion as possible. No doubt the terms of that agreement would have been worked out and everything could be wrapped up more efficiently if it were not caught on the legal hook of whether, at the time when consent is granted, the promoter has an interest in land.

John Healey: This is an important clause. I accept the hon. Gentleman’s explanation of his amendment and I recognise that the matter has been raised by a number of practitioners. I will try to deal with the clause as drafted and explain the purpose behind it; I hope that that will help the Committee. It allows the promoter of a nationally significant infrastructure project to enter into agreements with local authorities. Its purpose is to allow them to do so in the same way—I think the hon. Gentleman recognises this—as a developer seeking planning permission under the 1990 Act.
The clause is needed to allow full use of planning obligations to be made under the single consents regime. By allowing planning obligations to be negotiated on a bilateral basis between promoters and local planning authorities, agreement can be reached on many important issues that might otherwise have to be brought to the IPC’s attention for examination. Clearly, if they can be dealt with and agreed in advance, that saves everybody time and hassle. Certainly, it helps to speed up the IPC’s examination process and allows it to concentrate on the matters where agreement cannot otherwise be reached.
I recognise that the hon. Gentleman raises a real concern with his amendment, but it is not workable. In many ways it would wind the clock back a number of decades. At present, under section 106 of the 1990 Act, any person interested in land in the area of a local planning authority may, by agreement or otherwise, enter into an obligation with the local planning authority in question. The obligation is registered as a land charge.

It being One o’clock,The Chairmanadjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at Four o'clock.